IP Newsletter | Spring 2016
	TRADEMARK, DESIGN, COPYRIGHT & UNFAIR COMPETITION
	Unregistered Handbag Designs Can Be Protected Under UCPA "Catch-All" Provision
	The Seoul High Court recently rendered a significant decision that further clarifies the meaning of the "catch-all" provision of the Korean Unfair Competition and Trade Secret Protection Prevention Act ("UCPA"). The catch-all provision is a recent addition to the UCPA, having entered into force on January 31, 2014, and serves to cover acts of unfair competition not contemplated by the other provisions of the UCPA, by prohibiting the infringement of another's right to profit through the unauthorized use of any "output" produced by the other through considerable effort and investment to advance the infringer's business in a manner that contravenes fair trade practice or competition order. In its decision, the High Court explained that a UCPA catch-all claim should be evaluated as follows: (1) the court should consider whether the subject "output" is the result of considerable effort and investment; (2) the court should consider whether the output is entitled to legal protection or belongs to the public domain; and (3) the court should evaluate whether the defendant's acts violated fair commercial practices. The High Court applied this test to the case under review, which involved the unauthorized manufacture and sale of polyester bags on which images of Hermès' iconic BIRKIN, KELLY and KELLY LAKIS bags were printed (see below for examples of some of the infringing products), and ruled that the Korean defendant corporation had violated the catch-all provision (2015Na2012671). The High Court issued an injunction order against the defendant and awarded KRW 150 million (about USD 124,000) as damages. The High Court also accepted Kim & Chang's argument that "intangible damages," such as damages to reputation, could be awarded in cases involving the violation of a party's business interests, and thus one third of the damages award was to compensate for damages to Hermès' reputation. The High Court's decision is now final and conclusive.
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	If you have any questions regarding this article, please contact:
	Kyeong Tae KANG kyeongtae.kang@kimchang.com Ann Nam-Yeon KWON nykwon@kimchang.com Seung-Hee LEE shlee7@kimchang.com Alexandra BÉLEC abelec@kimchang.com
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